THE SUPREME COURT
Appeal No. 7/97
Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Murphy J. (diss.)

BETWEEN
PATRICK JOSEPH BRADY & ORS.
Applicants/Respondents
AND

THE COUNTY COUNCIL OF THE COUNTY OF CAVAN
Respondents/Appellants

[Judgments by Keane J. and Murphy J. (Dissenting); Hamilton C.J., Denham J. and Barrington J. agreed with Keane J.]

JUDGMENT delivered the 17th day of June, 1999 by Keane J.

The facts in this case are not seriously in dispute. The evidence in the High Court satisfied the learned trial judge that the roads in County Cavan used by the applicants to get to and from their houses had deteriorated through lack of repair and maintenance to such an extent that they were, at the time of the hearing, dangerous to vehicles. That she was entitled so to find was not disputed on behalf of Cavan County Council, the appellants in these

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proceedings (hereafter “the Council”) or on behalf of the Attorney General who intervened in the proceedings and was heard by this court because, as it was submitted on his behalf issues of general public concern were raised.

In an affidavit, the County Engineer, Mr. John Tiernan, said that there were approximately 1,350 discrete county roads in County Cavan, in addition to regional and national roads. Approximately, 600 of them, including those the subject of these proceedings, were deemed at that time to be in “very poor or critical condition”. The cost of bringing these roads to a satisfactory condition would be in the order of IR£40 million. He also said that the roads in this area, because of weak soil conditions, increased axle loading and under funding were collectively the weakest link in the chain of the entire road network in the country.

In order to deal with this, Mr. Tiernan had recommended that an eight year recovery programme should be adopted by the Council, requiring a total expenditure of IR£9.6 million per annum for the regional and county roads for each of the eight years. He said that:-

“Based on the current finances available and applying the most optimistic projections, it would take 22 years before the entire road network in County Cavan could be brought into satisfactory condition.”

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The total funding available to the Council from all sources, he said, represented just over 53% of the amount required to implement the programme. Mr. Tiernan said that, in deciding which roads should be given priority, the Council took the following matters into account:-

(a) the degree of deterioration of the road in question;

(b) the number of families availing of the road;

(c) the needs of industry and employment;

(d) the types of traffic using the road;

(e) the volume of traffic;

(f) whether there exist particular cases of social or medical needs;

(g) the potential for tourism development;

(h) representations from local elected representatives;

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(i) representations from private individuals etc.

It was also not in dispute that the Council has only three sources of income to meet its admitted statutory responsibilities in this and other areas: the imposition of service charges, the levying of rates and rate support and other grants from central government. The service charges are levied in respect of water supply, sewerage and refuse collection. Since the abolition of domestic rates and the determination by the courts that rates on agricultural land were unlawful, the County Council is confined to levying rates on commercial properties. The evidence was that the commercial rateable valuation per mile of county and regional road in Cavan was the 23rd lowest in the country and that to raise the money required for road repairs through rating would necessitate raising those rates by approximately £92 bringing the total rate to a figure in excess of £122 for a period of eight years.

There is also no dispute as to much of the relevant law. Section 82 of the Local Government (Ireland) Act 1898 (hereafter “the 1898 Act”) provides that:-

“It shall be the duty of every county and district council, according to their respective powers, to keep all public works maintainable

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at the cost of their county or district in good condition and repair, and to take all steps necessary for that purpose.”

The works referred to in this provision include roads, by virtue of s.109.

A statutory duty to keep the roads in their county in good condition and repair was thus clearly and unambiguously imposed on the Council. While other statutory provisions have been enacted since then concerning the repair and maintenance of roads, it is indisputable that the Council remains subject to that statutory duty and, as the evidence before the High Court established, that the roads were in a serious state of disrepair. The single issue in this appeal is as to whether the applicants were entitled to an order of mandamus requiring the Council to comply with their statutory duty. The trial judge held that they were and, in the result, made an order in the following terms:-

“The court did grant an order of mandamus.

“AND IT WAS ORDERED accordingly that (the Council) put into good condition and repair the public road between Ash grove and Staghall Belturbet in the County of Cavan...”

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The order of mandamus, in essence a command issuing from the High Court and directed to a person or body, requiring him or them to do a particular specified act which appertains to his or their office and is in the nature of a public duty, has always been regarded by the law as discretionary in its nature. That was clearly the case with the prerogative writ of mandamus (see Julius v. Bishop of Oxford (5 AC 214 at p.246)) and, in my view, remains the law, although the remedy now takes the form of an order of mandamus by way of judicial review.

One of the grounds on which the courts declined to exercise their discretion in favour of granting the order was, if established, the futility of so doing. That, it is claimed on behalf of the Council, is the position in this case.

The leading authority is Re: The Bristol and North Somerset Railway Company [1877] 3 QBD 10 where Cockburn, C.J. said:-

“It would be idle to make this rule absolute f in the end there would be no possibility of enforcing obedience to the mandamus. The Bristol and North Somerset Railway Company is virtually defunct. ft has no power of raising money. its share capital is spent and its borrowing powers are exhausted. ft has parted with the possession and use of the railway in perpetuity to the Great Western Railway Company. The affair was bankrupt, and it was

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only by the Great Western Railway Company ‘s taking it in as part of their system that the line could continue to exist. Under these circumstances, If the rule were made absolute, how could the mandamus be enforced? The company has no funds or property except that airy nothing, the reversion after a perpetuity. This Court cannot put people in prison for not complying with an order when they have no means of doing so.”

The leading Irish authority on the topic is the decision of the former Supreme Court in The State (Modern Homes (Ireland) Limited v. Dublin Corporation [1953] IR 202, the facts of which are well known and can be shortly summarised. The defendants, Dublin Corporation, as the planning authority for their area, had resolved to make a planning scheme under the provisions of the Town and Regional Planning Acts, 1934 and 1939. That entitled them to require buildings erected without their permission in their area to be pulled down or altered. But it also obliged them to make the planning scheme “with all convenient speed” and submit it to the Minister for Local Government for his approval. Although the defendants had passed the appropriate resolution in 1936, by the year 1950 they had failed to make the development plan and the prosecutors, who had been refused permission for various buildings which they proposed to erect or had been subjected to

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conditions in respect of their erection, complained that they had been adversely affected in their business operations by the failure of the defendants to make the planning scheme. Their application for an order of mandamus was resisted on the ground inter alia that it would be futile to issue the order.

Maguire CJ speaking for the court (Murnaghan, O’Byrne, Lavery and Kingsmill Moore JJ) said:-

“It is argued that there can be no certainty that the scheme will be made even f the order of mandamus is issued. It is, of course, correct that an order will not be made fit is clear that it would be impossible of performance by reason of the circumstances that the doing of the act would involve a contravention of law or if the defendants have not the means of complying with the order...”

Having cited the passage just quoted from the judgment of Cockburn CJ in Re: The Bristol and North Somerset Railway Company he went on:-

“There are other cases to the same effect. The position here is far different. (The defendants) are asked to carry out their legal obligation and they have the means to carry out the order. It is to be assumed that they will obey an order of the Court to do that

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which is their statutory duty to do. The argument appeared to be that if the Council refused to obey the order of the Court there would be no means available to the Court to compel them to do so, or to see that the scheme was made. (Counsel for the defendants) argued that unless the court could put machinery in motion to prepare a planning scheme f the Council refused to obey an order to do so that it should not make the order asked. This argument is based on a misconception of the position. If those who are held to have failed in a public duty prove recalcitrant the Court has ample powers to compel compliance with its order and does not necessarily seek other means of having the duty performed.”

As the Chief Justice there makes clear, the defendants in that case had the resources necessary for the making of a planning scheme: the argument on their behalf was that, since they were the only body under the statute capable of making a scheme, the court would be powerless if they chose to disregard its order. It is hardly surprising that this bold proposition was unanimously rejected by the court.

In this case, the Council have never suggested that they would defy any order the courts might choose to make. They rest their opposition to the making of an order of mandamus on an entirely different ground, i.e. that, given their

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relatively small rating base and the failure of central government to advance them the necessary funds by way of grant, the only way in which they can fulfil their statutory duty, within the means available to them, is by tackling the road repair programme over a period of years and endeavouring to apply what resources they have in a rational and systematic order, having regard to the various priorities identified by the county engineer. To select one strip of roadway, from approximately 600 acknowledged to be in very poor condition, under the threat of legal proceedings would not, they say, ensure the fulfilment of their statutory duty: on the contrary, it would simply mean that their admitted responsibilities were being discharged in a haphazard and arbitrary manner by the elevation of this particular strip to an unjustified priority in their road repair programme.

Whether or not that affords a legal ground on which the High Court should have exercised its discretion to refuse the order of mandamus, there can be no doubt that its factual basis is correct and unchallenged. The only effect of the order of mandamus if complied with, will be the repair of the strip of road referred to in the order. Unless the necessary funds are provided by the Government, the rest of the road network in County Cavan will remain in a state of unacceptable disrepair in the future and the order will thus fail to secure the compliance by the Council with their statutory duty. It has not been seriously suggested that it is a practical proposition for the Council to impose

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the colossal rating burden already mentioned on the relatively small number of commercial businesses in County Cavan.

The learned High Court judge, when she came to consider the practicalities of making the order sought, said:-

“The Oireachtas having imposed and continued a statutory obligation on a local authority to maintain roads, must, as long as that obligation remains unqualified make it possible for the local authorities to perform its statutory duties. Pre-1978 the local authority would have had to increase its rate to discharge its obligations. But since the elimination of a broad based rating system it is no longer possible for a County Council to do this. The central fund therefore must make up the shortfall. This is not a case of telling the government how it must spend money. It is a case of the Oireachtas having imposed a statutory duty on local authorities, being required to provide the means of carrying out that duty.”

The Oireachtas is not a party to these proceedings and, presumably, having regard to the separation of powers, could not be. Neither is the Government or the Minister for the Environment. The Attorney General

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appeared for the first time in the proceedings in the course of the appeal to this court and then only in an amicus curiae role. It may be, for all we know, that these bodies would, in response to the order, provide the Council with the necessary funds, but neither the judgment in the High Court nor the arguments advanced on behalf of the applicants in this court offer any guidance as to what is to happen if they do not. Unless there was coercive authority to the contrary, I would not be disposed to hold that the court should bring the rigours of mandamus to bear on a public authority where it is acknowledged that they have not the means to comply with the order and that its successful implementation depends on the co-operation of other bodies who are not before the court.

The decision of a divisional court and the Court of Appeal in The King (Westropp) v. County Council of Clare [1904] 2 IR 569 is, however, relied on by the applicants as establishing that mandamus is indeed an appropriate remedy in circumstances such as the present. In that case, a ratepayer, whose lands adjoined a road, complained on many occasions of its condition and called on the County and District Councils to put it into, and maintain it in, proper repair. The councils having failed to do so, he was held entitled to a writ of mandamus commanding the councils to put the road in proper repair. Emphasis was laid in the judgments both of the divisional court and the Court

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of Appeal, not merely on s.82 of the 1898, but also on s.81 which provides that:-

“Where a mandamus is issued by the High Court to any county or district council, and the council fail to comply therewith, the Court may appoint an officer, and confer on him all or any of the powers of the defaulting Council which appear to the Court necessary for carrying into effect the mandamus.”

The case is, accordingly, an authority for the granting of an order of mandamus against a County Council which has failed to comply with its statutory duty under s.82 of the 1898 Act. However, in order to determine whether it is applicable to the circumstances which have arisen in this case, the facts must be considered in more detail. The County Council had entered into a contract for the repair of the road for five years with a man who subsequently became incapacitated by mental illness. The council did not replace him and as a result the road deteriorated to such an extent that it was described as “bad and dangerous”. In the course of his judgment in the Court of Appeal, Fitzgibbon LJ pointed out that, although the council had eventually obtained another contractor, even his contract did not oblige him to put the road into “good

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condition and repair” within the meaning of the statute which, given its neglected state, would have effectively meant the restoration of the road. 

There was, accordingly, no question in that case of the council not having the resources to carry out the work: the ruinous condition of the road was due to the failure of the Council to replace the contractor who had become incapacitated, although there was no suggestion that they were unable to replace him, and to their further failure to ensure that the new contractor was employed to restore the road to its former state. Nor was there any question in that case of a particular landowner seeking to have the stretch of road adjoining his land given priority over all the other roads in a similar state of disrepair in the county. Having regard to its particular facts, it cannot be regarded as a conclusive authority in favour of the proposition contended for on behalf of the applicants in this case. There are, in any event, doubts as to its correctness to which I shall return.

The question as to whether a mandamus should issue because of the alleged default of a County Council in repairing the roads in their area was also considered by the King’s Bench Division in The King  Hewson) v. The County Council of Wicklow [1908] 2 JR 101. In that case, the owner of a house near Greystones in County Wicklow complained that the County Council had failed to keep a road or track leading from a public road to the house in proper repair and condition. An application to make absolute a conditional order of

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mandamus directing the County Council and the Rural District Council to put the road into repair was refused inter alia because the road was not a public road. It also appeared that the effect of granting the order would be to compel the expenditure on roads of a sum in excess of that permitted by s.27(2) of the 1898 Act and on that ground also the divisional court was of the opinion that an order of mandamus should not issue. That subsection was repealed by the Local Government Act 1925, save in so far as it applied to the City and County of Dublin, but the judgments of Lord O’Brien LCJ and Gibson J contain passages which are of some relevance to the present case. The former made it clear that the order should not be granted since it would be “ineffective”. He added:-

“Indeed, in the exercise of our discretion, I think we ought to refuse this application as, having regard to the inadequacy of the funds sanctioned by the Local Government Board in relation to roads, any attempted application, distribution, or re-distribution of them with reference to the so called road in question would be calculated under the circumstances of the present position, to create great confusion, embarrassment and public prejudice.”

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I see no reason for supposing that, confronted with the financial constraints to which the Council are subject in the present case and the consequences of making the order sought, the Lord Chief Justice would have reached any different conclusion.

It should also be noted that, in that case, it was accepted that the relevant expenditure limits could be exceeded if the consent of the Local Government Board was obtained. The comment of Gibson J. is of interest:-

“The limit of local expenditure has been reached. Assuming that the trifling balance stated in the affidavits exists in fact (and it is said that it does not, as there was a mistake in the figures), it would be barely sufficient to meet urgent and unexpected casualties. Can or ought the District or County Council to be compelled by mandamus contrary to their own judgment, to apply for such consent? Should the prerogative writ be issued on the chance of the Local Government Board allowing the statutory limit to be exceeded? Want of ability to comply with mandamus, if allowed, is a good answer to an application for the writ. Bristol Railway Case. In Westropp’s Case none of these difficulties were raised or considered.”

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Two recent decisions, one Irish and one English, were also relied on by the Applicants. The Irish authority is the decision of the High Court in Hoey v. Minister for Justice [1994] 1 ILRM 334. In that case, two solicitors practising in Dundalk sought an order of mandamus requiring the Minister for Justice to direct Louth County Council to provide accommodation for the Circuit Court in Drogheda. The courthouse in Drogheda was in such a serious state of disrepair that Drogheda Corporation had served a Dangerous Buildings Notice on the County Council and the sittings of the court were transferred to Dundalk. Under section 3(1) of the Courthouses (Provision and Maintenance) Act 1935, the County Council were required to provide courthouse accommodation for the sittings of any court held in their functional area “as the Minister shall direct either generally or in any particular case “. In purported exercise of his powers under this provision, the Minister informed the County Council that he did not require them thenceforth to provide courthouse accommodation at Drogheda for sittings of the Circuit Court. It was stated on his behalf that he did so because sufficient funding had not been provided by the exchequer for the necessary repairs to the courthouse. Lynch J. held that the Minister was not entitled to give such a direction, saying:-

“It is quite clear that the obligation under the 1935 Act of providing, maintaining and financing suitable courthouse

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accommodation rests on the local authority. It is not open to the executive by arrangements made with the local authority or by promises made to the local authority to relieve such local authority from the obligations expressly imposed upon them by the 1935 Act.”

He accordingly granted an order of mandamus requiring the Minister to direct the County Council to provide courthouse accommodation in Drogheda.

That case is, in my view, entirely distinguishable from the present case. The Minister was seeking to do what in law it was held he could not do, i.e. exonerate the County Council from their statutory duty of providing and maintaining in repair suitable courthouse accommodation in a venue lawfully designated for sittings of the Circuit Court. The Council in this case make no claim to be relieved of their statutory obligation to keep the roads in their county in proper repair and condition: they say no more than that the granting of an order of mandamus in the form sought by the Applicants will be ineffectual to secure compliance with their statutory duty.

The English case is R. v. East Sussex County Council ex parte Tandy [1998] 2 All ER 769. In that case, the applicant was a schoolgirl who suffered from a condition called myalgic encephalomyelitis (ME) since she was seven, in consequence of which she found it very difficult, and at times impossible to

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attend school. The respondents, as the local education authority, were subject to a statutory duty to provide education for children in their area who by reason of illness could not otherwise have received it. In pursuance of the statutory scheme, the local authority provided five hours a week home tuition for the applicant. Following a cut in the local authority’s home tuition budget from £100,000 a year to £25,000 a year, the hours of home tuition were reduced from five hours to three hours per week. It was acknowledged on behalf of the Council that the cut had been dictated purely by financial considerations and not by the child’s illness or educational needs. The House of Lords unanimously rejected a contention on behalf of the local authority that the lack of resources precluded any statutory duty arising to maintain the home tuition at a level required by the child’s educational needs. In the course of his speech, Lord Browne-Wilkinson said:-

“My Lords, I believe your Lordships should resist this approach to statutory duties.

First, the county council has as a matter of strict legality the resources necessary to perform its statutory duty under s. 298. Very understandably it does not wish to bleed its other functions of resources so as to enable it to perform the statutory duty under

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s.298. But it can, f it wishes, divert moneys from other educational ‘or other’ applications which are merely discretionary so as to apply such diverted moneys to discharge the statutory duty laid down by s.298. The argument is not one of insufficient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power.

While I would not quarrel with that approach in any way, I am satisfied that it has no application to the present circumstances. There is no suggestion in this case that the Council can meet the huge financial costs of the road repair programme by diverting resources from other applications which are merely discretionary: closing down a public library in Cavan for a day or two each week is not going to have any significant effect on a repair bill of IR£30 million.

I am satisfied, that while the granting of mandamus is a discretionary remedy, the learned High Court judge erred in principle in the manner in which she exercised that discretion, having regard to the futility of granting the order

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where the Council had not the means to carry out their undoubted statutory duty.

The Council and the Attorney General rely on a further ground as being fatal to the granting of the relief sought. Section 82(3) of the 1898 Act provides that:-

“If any district council complain that a county council or any county council complain that a district council, have failed to perform [the duty imposed by subsection 1] the complaining council may, without prejudice to any other remedy, appeal to the Local Government Board and s.15 of the Public Health Act 1896 shall apply, with the necessary modifications, in like manner as where default is made by a sanitary authority.

The Board were then entitled to make an order limiting the time within which the necessary work or repairs were to be done and that order, in turn could be enforced by mandamus under s. 15(1) of the Public Health (Ireland) Act 1896, which provided so far as material that:-

“Where complaint is made to the Local Government Board that a sanitary authority has made default in providing their district with

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sufficient sewers ... the Local Government Board if satisfied after due inquiry, that the authority has been guilty of the alleged default, shall make an order limiting a time for the performance of their duty in the matter of such complaint. If such duty is not performed by the time limited in the order, such order may be enforced by writ of mandamus or the Local Government Board may appoint some person to perform such duty....

It was, accordingly, clearly envisaged that the Local Government Board, having held the inquiry referred to, would apply, if they thought it appropriate, for an order of mandamus: see R. v. Staines Union 62 U QB 540.

That statutory remedy for ensuring compliance by County and District Councils with their duties in respect of public works, including roads, was considered in Harbinson v. Armagh County Council [1902] 2 IR 538. That case established that the principle of law by virtue of which no action for damages lay at common law for injury caused by the failure to repair a highway had not been affected by the provisions of the 1898 Act. It also made clear that the only remedy which could be invoked against a council in default was that provided under s.82(3) of the 1898 Act and s.15 of the Public Health (Ireland) Act 1896.

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The nonfeasance rule, as it was known, was of ancient origin, the leading case on the topic of Russell v. The Men of Devon 2 TR 667 having been decided in 1788. Lord Halsbury in Cowley v. Newmarket Local Board [1892] AC 345 stated the rule to be that:-

“[A]s the road ought to be repaired by the public no individual can maintain an action against them for any injury arising from their neglect.

The same case had made it clear that in England the effect of statutes imposing the duty of repair on corporate bodies was not to create a new liability: they simply afforded a more convenient method of enforcing existing rights. This was the law applied by the Irish King’s Bench Division in Harbinson v. Armagh County Council where Lord O’Brien LCJ, had this to say of the relevant provisions of the 1898 Act:-

“Now, it is quite true that the 82nd section of [the 1898 Act] expressly, and in so many words, says that it shall be the duty of the county council, according to its powers, to keep all roads and bridges in repair; but in my opinion this express declaration as to their duty was inserted in the section solely with the view of

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removing all question of discretion, and of securing that the public duty of maintaining roads should be fulfilled and its fulfilment made enforceable by mandamus - with the view, in fine, of making it clear that a county council fit failed to perform its duty, could be reached by mandamus under the incorporated provisions of the Public Health Act, and not with a view of creating an added liability, in the case of mere nonfeasance, to civil redress for damages.”

The reference to an order for mandamus is to an order normally made at the suit of the Local Government Board (now the Minister for the Environment) under the provisions of s.15 of the Public Health (Ireland) Act 1896. That passage suggests strongly that the reference to an order of mandamus in s.8 1 of the 1898 Act is to such an order and not to one sought at the suit of a member of the public. Remarkably, Lord O’Brien LCJ makes no reference in his judgment in Westropp either to his earlier judgment in Harbinson or to the effect of s.82(3) of the 1898 Act. Nor is it referred to at any point in the later case of Hewson. The authority of the two latter decisions, accordingly, cannot be regarded, in my view, as beyond doubt, notwithstanding the considerable eminence of the judges who decided them. However, for the reasons I have already given it is sufficient to say that, in the case of Westropp

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they simply do not support the propositions advanced on behalf of the applicants and, in the case of Hewson the remarks of both the Lord Chief Justice and Gibson J, which I have cited are against the granting of mandamus in a case such as the present.

Section 60(1) of the Civil Liability Act 1961 provided that:-

“A road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road.”

However, that change in the common law position was only to become operative: -

“on such day, not earlier than the 1st day of April 1967, as may be fixed therefor by order made by the Government.”

No such order has ever been made by the Government and it was held by a majority of this court in The State (Sheehan) v. The Government of Ireland [1987] IR 550 that an order of mandamus could not be granted requiring the Government to bring the section into operation. The position, accordingly, remains that a person who suffers injury by reason of the failure of a county council to carry out their statutory duty to repair a road cannot recover damages

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from the county council. The law would be in a remarkable and anomalous state if a person who suffered the most catastrophic injuries as a result of the culpable neglect of the county council in fulfilling its statutory duty, even in a case where they had the appropriate resources, could not recover damages, while a person who suffers no more than inconvenience in circumstances were the council’s failure is due, not to their neglect as such, but to lack of funds, is provided by the law with a remedy in the form of an order of mandamus. I do not in any way underestimate the hardship which has been caused to some of the applicants in the present case, which extends beyond mere inconvenience, and, in one instance at least, to the sustaining of personal injuries. But if the arguments on behalf of the applicants are well founded it would follow that an order of mandamus should similarly be granted in respect of the non-repair of the road, where the inconvenience suffered by the applicant was significantly less and might not even be capable of being classified as a serious hardship.

In view of the uncertain nature of the authorities, and the fact that any argument based on lack of standing was abandoned in the High Court, I would reserve for another occasion the question as to whether, even assuming a culpable neglect on the part of a council in failing to perform their duties under the 1898 Act, mandamus lies at the suit of a member of the public to compel them to perform their duty. For the purpose of this case, it is sufficient to say

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that, for the reasons already given, I am satisfied that this was not a proper case in which to grant the remedy of mandamus.

I would allow the appeal. 

THE SUPREME COURT
1997 No 7
HAMILTON CJ
DENHAM J
BARRINGTON J
KEANE J
MURPHY J

BETWEEN:
PATRICK JOSEPH BRADY & ORS
APPLICANTS/RESPONDENTS
AND

THE COUNTY COUNCIL OF THE COUNTY OF CAVAN
RESPONDENTS/APPELLANTS

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 17TH DAY OF JUNE 1999

These proceedings raise issues as to the extent of the liability of a local authority to keep in repair roads in their areas and the nature of the remedy (if any) available in the event of their failure to perform that duty.

By her judgment and order dated the 20th day of December 1996 Ms Justice Carroll held that the County Council of the County of Cavan (the Appellants) had failed in their statutory duty to maintain the roadway between Ashgrove and Stag Hall, Belturbett, County Cavan and

granted to the Applicants/Respondents, who were all residents in the area, an order of Mandamus directing the Appellants to repair that roadway. It is from that judgment and order that the Cavan County Council appeal to this Court.

Originally the Appellants disputed the locus stand of the Respondents to maintain these proceedings. That challenge was subsequently abandoned. Again it is conceded that the Appellants do have certain obligations in respect of the repair and maintenance of the roads in their administrative area and moreover they concede - as clearly they must - that the roadway in question is (or was) in a deplorable and perhaps dangerous condition. What the Appellants disputed was the extent rather then the existence of a statutory duty to repair and the nature of the remedy (if any) available to local residents in the event of a failure to fulfil that duty.

Last year was the centenary of the legislation which introduced major reforms in the administration and constitution of Local Authorities. It was the Local Government (Ireland) Act, 1898, which imposed on Local Authorities the duty to maintain roads. Section 82 (1) of that Act provided that:-

“It shall be the duty of every county and district council, according to their respective powers, to keep all public works maintainable at the cost of their county or district in good condition and repair, and to take all steps necessary for that purpose.”

“Public works” includes roads (see section 109 of the 1898 Act).

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The Local Government Act 1925 (Part III) section 24 provided:-

“(1) On and after the 1st day of April, 1925:- 

(a) the maintenance and construction of all county and main roads in a county shall be the duty of the council of such county;”

The Roads Act, 1993 repealed Part III of the Local Government Act, 1925 and in lieu thereof provided that:-

“13 (1) Subject to Part III, the maintenance and construction of all national and regional roads in an administrative county shall be a function of the council or county borough corporation of that county.

(2) It shall be a function of the council of a county, the corporation of a county or other borough or the council of an urban district to maintain and construct all local roads: -

(a) in the case of the council of a county - in its administrative county, excluding any borough or urban district,

(b) in the case of any other local authority - in its administrative area.

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(3) The local authorities referred to in subsections (1) and (2) shall be road authorities for the purposes of the roads referred to in those subsections and shall, subject to Part III and in respect of those roads, perform all the functions assigned to road authorities by or under any enactment (including this Act) or instrument.

(4) The expenses of the council of a county in respect of its functions under subsection (2) shall be charged on the county exclusive of any borough or urban district.

(5) In the performance of their functions under subsections (1) and (2), a road authority shall consider the needs of all road users.

(6) (a) A person or group of persons may, with the consent of a road authority, carry out maintenance works on a local road.

(b) A consent under paragraph (a) may be given by the road authority subject to such conditions, restrictions and requirements as it thinks fit.

(c) Where a road authority gives its consent under paragraph (a) and the works have been carried out in a bona fide manner and in accordance with every condition, restriction or requirement specified under paragraph (b) -

(i) the works shall be deemed to have been carried out by the road authority, and

(ii) the person or group (and each member thereof who carried out the works shall be indemnified by the by the road authority against all

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actions and claims howsoever arising in respect of the works and the carrying out of works.

(d) A road authority may provided materials, plant, equipment and the services of its staff to a person or group carrying out works under this subsection.

(7) A road authority may do all such things as arise out of or are consequential on or are necessary or expedient for the performance of its functions under this Act or otherwise in relation to public roads or are ancillary thereto.

(8) Without prejudice to the generality of subsection (7) and save as otherwise provided by law, a road authority may -

(a) provide any amenity, structure or thing for the safety or convenience of road users,

(b) undertake landscaping, planting or any similar activity in the interests of amenity and the environment,

(c) provide artistic features.

(9) Notwithstanding the definition of “road” in section 2, nothing in this Act shall be construed as imposing on a road authority any liability, duty or obligation to -

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(a) construct or maintain fences or retaining walls adjoining a public road which are the responsibility of any other person and which do not form part of the road, or

(b) construct or maintain any bridges, tunnels, railway crossings or any other structure which by virtue of any enactment are the responsibility of a railway company or other person.

(10) (a) A person who, without lawful authority or the consent of a road authority-

(i) defaces a public road by writing or by any other means,

(ii) damages a public road,

(iii) excavates a public road,

(iv) (I) places or deposits any material or thing on a public road,

(II) permits dung or urine from an animal owned by him or any material or thing which falls from a vehicle owned or used by him, to be left on a public road, or

(III) does any other thing, such that the material, thing, dung or urine or the doing of such other thing is a hazard or potential hazard to persons using a public road or obstructs or interferes with the safe use of a public road or the maintenance of a public roads

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shall be guilty of an offence.

(b) A consent under paragraph (a) may be given by the road authority subject to such conditions, restrictions or requirements as it thinks fit and any person who fails to comply with such conditions, restrictions or requirements shall be guilty of an offence.

(c) Where a person does anything in contravention of paragraph (a), a road authority may remove any defacement, repair any damage, fill in any excavation, remove any material, thing, dung or urine or remove or reduce any hazard, potential hazard, obstruction or interference and may recover from such person, as a simple contract debt in any court of competent jurisdiction, any costs reasonably incurred by it.”

I have quoted at length from section 13 of the 1993 Act as (taken in conjunction with the 1898 Act) it provides the essential code relating to the duties and rights of Local Authorities in respect of roadways. The argument of the Appellants was based largely upon that section and the contention that the learned Trial Judge did not have sufficient regard thereto. Furthermore, section 13 must be considered in conjunction with section 12 which authorises “the abandonment of public roads” in certain circumstances and, or so the Appellants would contend, the legislative provisions regulating the finances of local authorities.

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What the Appellants contend is that the statutory duties imposed upon local authorities in relation to the maintenance of roadways are not “absolute “. It was contended that the scheme of the 1993 Act was to create the following situation:-

(a) That county councils are charged with both powers and duties in relation to roads falling within their county;

(b) In the performance of those powers and duties they are obliged to consider the needs of all road users; and

(c) The performance of those powers and duties are, to some extents, dependant upon the provision of finance by the Minister for the Environment in accordance with section 82 of the 1993 Act.

The history as to how inhabitants of particular areas came to construct roadways for their own convenience and that of others is of ancient origin but by no means irrelevant. It was the self-imposed obligation or, more correctly, the task voluntarily undertaken by local residents which explains why, to the present day, local authorities may be liable in tort for what they do but not for what they fail to do. Moreover, the consideration of the circumstances which existed a hundred years ago when the statutory obligation of repairing roads was cast upon local authorities may help to explain why the duty was imposed and how it came to be accepted. It was only in the nineteenth century that Macadamised surfaces were invented and presumably road surfaces in County Cavan and elsewhere at the end of that century would have been regarded as primitive by comparison to modern standards. On the other hand the wear and tear on roads by motor vehicles at that stage must have been virtually unknown. Although the invention of the internal combustion engine by Carl Benz occurred some years

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before the enactment of the 1898 Act but it was ten years thereafter that Henry Ford began the true automobile revolution with the invention of the Model T Ford. It is unlikely that much damage was caused to roads in County Cavan by motor cars at the time when Percy French held there the post which he described as the ‘inspector of Drains” notwithstanding the fact that in his parody of Longfellow’s “Excelsior” he advocated a car, rather than a bicycle, as the better means of traversing the hills of Cavan.

Undoubtedly the advent of motor vehicles, farm machinery and heavy lorries, and that in vastly increasing numbers, has altered dramatically the standard required in the construction of roads and the problems of maintaining them. Unfortunately these problems are multiplied in County Cavan and adjoining counties for the geo-technical reasons explained by the County Engineer, Mr John Tiernan, in the very helpful affidavit sworn by him on the 12th day of December 1994. He explained the nature of the “widespread weak soil conditions” which exacerbated the problems for road maintenance in the area. Ironically it was those same conditions which created additional difficulties for the Appellants in financing road works at the time when their income was derived substantially from rates. The poor soil conditions resulted in low rateable valuations with correspondingly modest returns from rates. But at least under the rating system the capacity of the local authority to strike a rate provided, in theory at least, a balancing factor between the demands made on the local authority by the statutory duties imposed on it and the financial resources required to discharge those obligations. The effective abolition of rates on domestic hereditaments by the Local Government (Financial Provisions) Act 1978 and the decision of this Court in Brennan v. Attorney General [1984] ILRM 355 declaring unconstitutional the legislation under which rates were imposed on agricultural lands has left Local Authorities with only a very small income derived form local taxation. They are now dependant on central government to make

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up the lost revenue in the form of a “rate support grant”. It is section 82 of the Roads Act, 1993 which expressly provides that:-

“The Minister may, subject to such conditions as he sees fit, in each financial year make grants, of such amounts as may be sanctioned by the Minister for Finance out of moneys provided by the Oireachtas, to road authorities in respect of any or all of their functions under this Act or otherwise in relation to public roads.”

As Mr Tiernan demonstrated in his affidavits it would be wholly impracticable for the Cavan County Council to raise by way of rates even a fraction of the monies required to repair and keep repaired the roadway system in County Cavan. That system comprises 1,350 county roads and, as Mr Tiernan fairly concedes, 600 approximately of those roads could be described “as being in a broadly comparable condition to the roads the subject matter of these proceedings “. That those roads are in a deplorable condition is clear beyond dispute and indeed the learned Trial Judge satisfied herself by inspection that such was the case. Mr Tiernan explained that both central government and the local authority recognised the “particularly dreadful state of the roads in County Cavan “. It was his disturbing conclusion that it would take eight years and a sum of nearly £10 million a year to correct the problem. It was, however, his calculation that on the basis of the financial system current at the date of his affidavit and applying even the most optimistic projections it would take 22 years before the entire road network in County Cavan would be brought up to a satisfactory condition.

The Appellants stress the fact that the 1898 Act provided no definition as to what constitutes good condition and repair in relation to roadways. It was urged that the determination of

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good condition and repair necessarily involved policy decisions. Mr Tiernan in his technical analysis of the problem explained how the deterioration of roads due to particular causes might not manifest itself for a number of years. Administrative and technical problems will undoubtedly create special problems and even with unlimited resources no local authority could be expected to achieve and maintain an adequate state of repairs of all of its roads at all times. There would be competition in the demands in respect of roadways themselves and there would be competition by reference to the demands placed on the local authority in respect of other important services. I would have no difficulty in accepting and applying the principle referred to in De Smith’s Judicial Review of Administrative Action (5th Edition 1995) para 16-0 10 as follows:

“Latitude will also often be given to a public body with respect to the manner and extent of their performance of their duties, particularly when resources are insufficient to satisfy all claims upon them; in these circumstances, judicial enforcement tends to be limited to situations in which reasonable efforts to perform had not been made.”

Again, section 7 of the Local Government Act, 1991 does enjoin local authorities to have regard to a number of factors in the performance of their functions. These are largely sensible provisions with regard to consultation and co-operation with other bodies and the husbanding of precious resources. That section does not, however, dilute the statutory burdens placed on the local authority. Any doubt in that regard is laid to rest by subsection 2 of that section which provides as follows:-

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“A local authority shall perform those functions which it is required by law to perform and this section shall not be construed as affecting any such requirement.”

Whilst I would have every sympathy with the officials and officers of the Cavan County Council in their efforts to remedy a situation which may represent the result of neglect over a period of many years, and may indeed be caused by or contributed to by geo-technical factors peculiar to their area, without being given the resources or the means of raising the finances necessary to solve the problem. However I cannot see that these factors can change the nature of the statutory duty imposed on them. There is a mandatory requirement to repair the roads. The Applicants have identified roads which most assuredly have not been adequately repaired. At the very least the Applicants must be entitled to a declaration that the Respondents/Appellants have failed in their statutory duty. The question remains whether the powers of the Court are restricted to that limited and inadequate remedy.

It is argued on behalf of the local authority that an order in the nature of Mandamus would involve the Court in determining the priority to be given to one stretch of roadway over another or indeed to one surface over another. On behalf of the Attorney General it was said that the making of an order of Mandamus would amount indirectly to a direction to the State -as the ultimate paymaster - as to how the Central Fund should be applied and that this would be an intrusion upon the Executive Function.

Historically - and of necessity against a different constitutional background - the issue of granting a Mandamus directing a local authority to repair roads was considered in two cases carefully analysed before the Court, namely, The King (Westropp) v. County Council of Glare

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[1904] 2 IR 569 and The King (Hewson) v. The County Council of Wicklow [1908] 2 IR 101. In the Westropp case an order of Mandamus was granted by the Court of Appeal affirming the decision of Palles CB and Andrews J in the High Court. The facts of that case, and more particularly the defence of the local authority, were somewhat special. It was explained that the local authority had engaged a contractor to carry out the appropriate repairs and that due to illness he had failed to complete the necessary works. That particular defence was rejected but more important were the decisions of the Court as to the interpretation of the 1898 Act. That great jurist Palles CB expressed his views at page 578 in the following terms:-

“I wish to add one word as to what I consider the liability of these Councils, for, in my opinion, it has not been clearly understood by them. Their duty is not satisfied by entering into a contract, or bypassing a resolution of reference to their county surveyor. It is not sufficient for them to say that such and such a proposal was not made, or that the county surveyor did not send in such and such a report. The duty to keep the road in repair is on them. They are bound to do it if their contractors shall fail to perform the duties imposed upon the Council the Council can at once procure their performance by others.”

Lord Justice Fitzgibbon expressed the same view (at page 583) in the following terms:-

“As to the measure of their duty, I wish to repeat, and to emphasise, the judgment of the Lord Chief Baron, that as the Councils can only perform their duty by others, the default of the others by whom they ought to have had it performed is a breach of their statutory obligation. They must see that the County Surveyor takes proper steps to make the contractors perform their duties, and the default of the contractor or County 

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“I am of opinion that this so-called road was not a public road maintainable by the county, or in any sense a public road within the ordinary meaning of that expression.”

Gibson and Kenny JJ were less emphatic in their conclusions. What Gibson J said (at page 117) was as follows:-

“Taking the whole case, the uncertainty of any real dedication of what was in its origin an accommodation road for the advantage of the La Touche estate, the vagueness of the user the lease of 1863, and the map on Mr. Hewson ‘s own lease, the Court would not be warranted in issuing the prerogative writ.”

Kenny J too reviewed the evidence and had regard to the fact that presentments had been made in respect of the particular roadway but went on to conclude (at page 122) as follows:-

“The present case seems to me to afford a strong illustration of the danger of conclusively binding the county by the passing of a presentment. In my opinion the county never meant to take over this road as a permanent burden, and have not done so.

The Court having made that finding any other observations made by it were necessarily obiter. But it is understandable that the Appellants should place reliance on the observations

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of Lord O’Brien when he dealt with the question of finance available to the county council in the following terms:-

“I think we should not grant the mandamus, as any order we would make would be ineffective. There would be no funds to give it effect as appears in the affidavit of Mr. Gallagher, the county surveyor of the county of Wicklow. He says in paragraph 7 of his affidavit as follows:-

‘I say that the limit of expenditure provided by sect. 27 of the Local Government Act 1898, for Rathdown No. 2 per annum on road contracts is £1711 5s. The actual liability on foot of contracts and works which must be paid for out of funds during the financial year, beginning 1st of April, 1907, is £1685 12s .4d., leaving a balance of £25 12s. 8d., which would be utterly inadequate to do the road or passage in question.

Lord O’Brien then went on to say:-

“Indeed, in the exercise of our discretion, I think we ought to refuse this application as, having regard to the inadequacy of the funds sanctioned by the Local Government Board in relation to roads, any attempted application, distribution, or re-distribution of them with reference to the so-called road in question would be calculated, under the circumstances of the present position, to create great confusion, embarrassment, and public prejudice.”

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It must be recognised that Lord O’Brien was not speaking about the inadequacy of funds available to a county council for the fulfilment of a statutory purpose but a positive statutory embargo on spending monies in excess of a particular amount without an appropriate consent. That restriction was contained in section 27 (2) of the 1898 Act in the following terms:-

“A county council shall not, without the consent of the Local Government Board, approve of any expenditure on roads proposed by the council of any rural district, which will cause the expenditure on the roads of the district to exceed by one-fourth the amount certified by that board to have been the average expenditure thereon during the three years next before the passing of this Act, and the Board may as respects each council consent either for a particular road or a particular year, or generally, and in the latter case may fix a new limit under this section.”

The importance of that provision was that there was an express statutory annual limit to the amount which a local authority could expend on the repairs of roads. Clearly an order of Mandamus could not be granted so as to override that statutory limit. However, the problem which that subsection might have created for the applicants was resolved by its effective repeal by section 27 by the Local Government Act of 1925.

In recent years orders of Mandamus had been granted to compel a local authority to repair and rebuild courthouses in accordance with the statutory duty imposed by them in that regard (see The State (King) v. The Minister for Justice [1984] IR 169 and Hoey v. The Minister for Justice [1994] 1 ILRM 334). Whilst it is true that in those cases the statutory obligation on

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the minister to provide courthouses was more specifically identified than the obligation on local authorities to repair and maintain roads, the salient feature of those cases - and in particular the Hoey case - was that the learned Trial Judge rejected the contention of the Minister that budgetary constraints could operate so as to alter the clear statutory duty. Lynch J summarised the position (at page 344) in the following terms:-

“It is quite clear that the obligation under the [Courthouses (Provision and Maintenance) Act 1935] of providing, maintaining and financing suitable courthouse accommodation rests on the local authority. It is not open to the executive by arrangements made with the local authority or by promises made to the local authority to relieve such local authority from the obligations expressly imposed upon them by the 1935 Act. True, there can be no objection to the executive agreeing to indemnify the local authority against the cost of observing the requirements of the 1935 Act and providing for such costs in their annual estimates and budgets but such an agreement cannot in any way limit or reduce the obligations of local authorities and of the minister under the terms of the 1935 Act. If the executive wishes to limit or reduce such obligations, the executive must introduce the appropriate legislation to the Oireachtas and persuade the Oireachtas to enact the same.

Whilst it is necessary to exercise extreme caution in applying decisions from other jurisdictions arising on different legislation and in a different constitutional environment the decision of the House of Lords in R v. East Sussex CC. ex parte Tandy [1998] 2 All ER 769 does appear to be helpful in the principle which it enunciates and in the terms in which the speech of Lord Browne-Wilkinson is expressed. In that case the House of Lords had under consideration the UK Education Act 1993, section 298 of which provided as follows:-

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“(1) Each local education authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them

(7) In this section “suitable education “, in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have.”

The appellant in that case, Beth Tandy was about sixteen years of age. She had suffered from myalgic encephalomyelitis and was mildly dyslexic. From May 1992 the Local Education Authority provided her with five hours home tuition per week as it was impossible for her to attend school. Subsequently the Local Education Authority cut the hours of home tuition from five hours per week to three hours per week because of financial constraints. That decision was challenged by way of judicial review. In his speech delivering the judgment of the House of Lords Lord Browne-Wilkinson said (at page 777):-

“Parliament has chosen to impose a statutory duty, as opposed to a power, requiring the local authority to do certain things. In my judgment the courts should be slow to downgrade such duties into what are, in effect mere discretions over which the court would have very little real control. If Parliament wishes to reduce public expenditure on meeting the needs of sick children then it is up to Parliament so to provide. It is

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not for the courts to adjust the order of priorities as between statutory duties and statutory discretions.”

Likewise, in my view the obligation imposed by the Oireachtas on Local Authorities in relation to the maintenance and repair of public roads is a duty and must be performed and may be enforced as such.

Nor do I accept that the obligation of the Local Authority is confined to or can be considered only in relation to the total road network within their jurisdiction. The Appellants argue that tax payers or residents could not seek redress in relation to particular roadways affecting their interests but could claim redress only if there had been a failure or neglect by the Local Authority to maintain the network as a whole. Unquestionably some statutory obligations are indivisible in their terms and in their purpose. The obligation to make a planning scheme under the Town and Regional Planning Regulations 1934, the effect of which was considered in the The State (Modern Homes (Ireland) Ltd) v. Dublin Corporation [1953] IR 202, is an example of such an obligation. However in general it would seem to me that where a statutory obligation is imposed upon a public body for the benefit of citizens generally or a particular section of the community, those persons affected by a breach of the statutory duty are entitled to seek and obtain a remedy insofar as the breach of duty impinges upon the complainant. On the other hand the statutory provisions at issue here cannot be invoked as “fire brigade provisions” to require a local authority to take immediate action in relation to every crack and crevice on roads in its area. Clearly, some roads may be in greater or more urgent need of repair than others and, in this regard, the management of its road-fixing schedule is a matter for the local authority. Considerations of prudent management may

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regulate the rotation in which roads are repaired but absence of resources will not justify abandoning or postponing indefinitely the performance of the statutory duty.

It is well settled law that the granting or withholding of judicial review by way of mandamus is discretionary. I would have no doubt that such discretion should be exercised sparingly in relation to the affairs of a local authority and, in particular, should not be granted at all where any doubt exists as to the existence of a duty or the adequacy of its performance. However, in the present case it is common case that the duty to repair exists and whatever doubt might exist as to the standard a local authority is required to achieve, it is clear that the condition of the road in question falls far short of that standard and the Cavan County Council does not suggest otherwise. Apart from the hesitation in granting the discretionary relief it is clear that adequate time must be given for compliance with it even where the failure may be due to default over a protracted period. The controversy as to the standard of repairs required to be carried out can be answered by reference to the judgment of the Chief Baron in the Westropp case where he said, (at page 578) and I agree, that:-

“... I am of opinion that this writ of mandamus ought to go, and that the writ should be in the general terms of the 82nd section, and command both Councils, according to their respective powers, to keep the road in good condition and repair, and to take all steps necessary for that purpose.”

I have no reason to doubt that the officials of the Cavan County Council would act responsibly and in obedience to an order of the Court. I would be confident that the necessary

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repairs would be carried out and that the County Engineer would ensure that they would be carried out to an appropriate and adequate standard. Any residual problems could be resolved by giving the parties liberty to apply to the Court.

In my view the learned Ms Justice Carroll was correct in the judgment and order given and made by her and I would dismiss the appeal.

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